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The Importance of Native American Intellectual Property

Published March 24, 2020

Native Americans are known for their distinctive cultures and special symbols. Protecting these cultures from being abused is difficult. In the article "Intellectual Property, Traditional Knowledge, and Traditional Cultural Expressions in Native American Tribal Codes,” author Dalindyebo Bafana Shabalala explains what is considered as Native American intellectual property and why it needs protection. According to Shabalala, Native American intellectual property includes traditional knowledge, traditional cultural expressions, and genetic resources (Shabalala par. 4). Traditional knowledge is skills, practices, and innovation concerning biodiversity, agriculture or health (par. 8). Various forms of art such as symbols, designs, painting, dance, music, literature, and performance are considered as cultural expressions (par. 10). Genetic resources include plants, seeds, and medicine formulas. 

There have been many cases where the Native American intellectual property has been used without first obtaining permission and authorization from the Native Americans. As mentioned in Shabalala’s article, Allergan, a pharmaceutical company, was using the Saint Regis Mohawk tribe’s formula to make their eye drop drug. However, that is not their original formula, so “on Friday, September 8, 2017, the pharmaceutical company” had to “[transfer] ownership of all federal U.S. patents for its Restasis drug to the Saint Regis Mohawk tribe; the tribe then licensed them back to the company” (par. 1). Another interesting case mentioned in the article is about the series Twilight ​​by author Stephanie Myers. The author of this book used the Quileute tribe’s origin story and incorporated it with the fictitious werewolf story without the permission of the tribe. Shabalala says that although the book or the movie “may have a valid copyright in the realm of federal property, the unauthorized use of the Quileute origin story may cause harm when outsiders begin viewing the unauthorized use of the cultural property as a true reflection of the source culture” (par. 11). These actions not only abuse the use of Native American intellectual property, but they also affect the images, the stories, and the cultures of the native people. 

With these cases of the property being misused, Shabalala raises a question of how the Native Americans protect their cultural properties and how the current federal law acts in protecting these properties. Each Native American tribe has its own laws and rules; these laws and rules are called tribal codes. In his study of a hundred tribal codes, Shabalala shows that there are only nine codes mentioned about intellectual property or something related to intellectual property.  This study demonstrates that the native people are unaware in protecting their cultural property. The native people are unaware because they do not know or think that other people would use these properties for their own purposes. However, the current federal laws are not providing enough protection for Native American intellectual property. Shabalala mentions the Trademark Law Treaty Implementation Act (TLTIA) and the Indian Arts and Crafts Act (IACA). The purpose of the TLTIA is “to provide international uniformity of trademark registration’ (par. 77); however, “the Congressional Record regarding TLTIA is absent of any authority or mention of providing protection to Native American tribes” (par. 83). The purpose of the IACA is to prevent fraud in the Indian arts and crafts market. However, according to Shabalala’s research, “the IACA trademark system does not provide sufficiently, and arguably any, protection for Native American tribes' cultural property, nor was it ever intended to” (par. 46). Another act is the Native American Graves Protection and Repatriation Act

(NAGPRA), an act with the purpose to provide “protection, return, and repatriation of Native American remains and artifacts found on federal or tribal lands” (par. 66). However, according to the article “An Analysis of the Lack of Protection for Intangible Tribal Cultural Property in the Digital Age,” author Chante Westmoreland states that the NAGPRA did “offer some protection for the tangible cultural property but omit protection for the sacred traditional knowledge the object conveys” (Westmoreland par. 10). 

There are many acts that try to provide protection concerning intellectual property, but they do not provide enough protection for the Native American intellectual property including traditional property, traditional cultural expressions, and genetic resources. According to the article called “Group Right to Cultural Survival: Intellectual Property Rights in Native American Cultural Symbols,” Terence Dougherty states that, “Intellectual property law in the context of cultural appropriation is particularly relevant to many Native Americans” (Dougherty par. 44). Dougherty also explains that with the significant misuse of the native symbols, cultural appropriation can greatly affect the cultural survival of the native people. Furthermore, in  Westmoreland’s article, he states that “sacred traditional knowledge is not merely information, it is essential to the tribal way of life” (par. 9). This demonstrates that the intellectual property of the Native Americans is extremely important to them in their living and their culture. Therefore, to avoid the misuse that can cause a negative impact on the native people, anyone who wants to use the property must have authorization from the native people. Moreover, the federal government needs to provide a law that specifically protects Native American traditional knowledge, traditional cultural expressions, and genetic resources.

 

Works Cited

Dougherty, Terence. (1998). Group Rights to Cultural Survival: Intellectual Property Rights in 

Native American Cultural Symbols. Columbia Human Rights Law Review, 29(2), 400.

Shabalala, Dalindyebo Bafana, (2017) "Intellectual Property, Traditional Knowledge, and

            Traditional Cultural Expressions in Native American Tribal Codes," Akron Law Review​: 

Vol. 51: Iss. 4, Article 5.

Westmoreland, Chante. (2018). “An Analysis of the Lack of Protection for Intangible Tribal  Cultural Property in the Digital Age.” California Law Review, 106(3), 959-990.